“Data about Data”: Why the law needs to catch up to the technology

In late-2017, RVM wrote about metadata that is collected by the devices that surround us every day such as cell phones, smart watches, and even smart shoes. We noted that that data could potentially be used as evidence. What a scary thought considering most people are likely unaware of just how much information is being collected.

Metadata ScaleBut with so much data about data being created and cataloged every day, a trend is now emerging where the information around collection of that data is often vague and ambiguous, and can potentially add up to unseen legal risks for users of that technology.

This problem did not go unnoticed, and early this year Judge Daniel Conviser heard arguments and agreed that litigants were being asked to provide too much data during discovery, noting:

Overbroad search warrants for digital evidence have become “all too common” in New York, are often green-lighted by busy judges who are focused on processing motions, and are the product of a system based on outdated statutes.

More recently, the public has become increasingly aware of vast quantities of data that Facebook collects through its web of apps, while its roughly 2 billion global users have been kept mostly in the dark. ARS Technica reported that Android users in particular could expect Facebook to collect call and message data, including who was being called or texted and the duration of that call. That’s pretty scary! Put into a legal perspective, that suggests that a lawyer who obtained legal access to a person’s Facebook account could actually stumble onto a lot more data than merely posts and pictures.

So what does that all mean?

As we’ve said plenty of times, technology is advancing – quickly. The discovery phase is more mired in data collection than ever before, and data collection technology is advancing constantly to keep up with the ubiquitous data producers. Shouldn’t the rules that govern the collection process be advancing, too?

That’s what Judge Conviser thought. In that case, the defendant – on trial for murder – had his iPhone turned inside out under the direction of a warrant. But the warrant never specified what the investigators could lawfully search for. With his ruling to suppress evidence turned up through these searches, the judge took a stand in defense of the Fourth Amendment.

Judge Conviser’s ruling is an important precedent for the legal community that will hopefully encourage greater specificity and sophistication when requesting and executing warrants for electronic evidence. But more needs to be done.

It is up to the legal community writ large to stay on top of technological trends and evolutions. Adhering to the old standards as “good enough,” or assuming that these trends are only important to technologists doesn’t cut it, and can endanger the clients that lawyers have pledged to protect.

At RVM, we are looking ahead to the moment when the courts leverage the technology we all use today to target and reduce data collection and document review volumes. It is our belief that when that moment arrives, they will see that Analytics and AI technology are a superior resource for collecting data with precision, and can ensure a person’s rights are being protected. The question remains how the courts will be prepared to deal with this change. Will they acquire and uphold the same sophistication and rigorous standards as those of us in the eDiscovery field?  Or will they need to evolve an industry of court-appointed consultants able to deliver a limited set of data related to the warrant’s subject?

As subject matter experts, it is up to us to work collaboratively with the varying groups of courts, law enforcement, and counsel to update the laws and change the practices that are used in warrants and data collections to protect people’s rights and support the discovery and evidentiary process. It is our collective responsibility in the eDiscovery community to help maintain high standards for data collection and to drive the field forward; speaking out to ensure the law continues to work for and protect our clients accordingly.

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